April 17, 2011

You don’t give A $h*t about Guantanamo. ~ Harris Mercer

Photo: The National Guard

It’s Dick Cheney’s world; we just live in it.

We’re all trapped in this long Gitmo nightmare—but President Obama’s most unequivocal failure is, perhaps, another reason to be thankful he’s president.

We don’t, in general, think about, hear about, or talk about Guantanamo.

But it’s worth pausing for a fraction of a second to consider not just what the prison at Guantanamo Bay “represents,” which is what’s usually discussed when it does come up in the news.

Let’s remember what Guantanamo is, and why it was created: it’s an offshore facility (in Cuba, no less), which, like a bank account in the Cayman Islands or a ship with an onboard casino parked just outside of territorial waters, is offshore for the explicit reason that what happens there is illegal.

What we’re doing to men we’ve kidnapped from all over the world, including the US, is against the law—so we can’t do it to them in our regular prisons (scarcely temples of justice themselves), and before we do it to them we can’t let them set foot on U.S. soil even for a second because there’s a small but real chance that might let them claim their human rights. And this prison, the very existence of which is an admission of guilt, apparently cannot be closed, not even by order of the President of the United States.

Guantanamo, which is, almost by definition, an unconstitutional and, at best, extralegal institution, is now a seemingly permanent part of a national security state so entrenched and so pervasive in its criminality that the nation’s commander-in-chief, head law enforcement officer, and top spies—Barack Obama, Eric Holder, Leon Panetta, James Clapper—can’t, despite all their good intentions and efforts, shut it down in two years of trying.

So we’re all stuck in the black hole of Guantanamo—prisoners unable to escape a regime of shame and criminality we want nothing to do with.

It’s Dick Cheney’s world; we just live in it.

Photo: 917press

For those of us who hoped a new, civil liberties-minded Democrat would become the first president in history to unilaterally hand back executive power to Congress or the courts, Gitmo and its 172 current residents are living reminders that George W. Bush’s crimes have been neither punished nor reversed.

In 2008, I worked my ass off on behalf of a constitutional law professor-turned-candidate who promised to close Guantanamo and restore the Constitution. In 2011, the prison remains open and the disappointment and frustration among civil libertarians is immense. And on the very day that President Obama, looking to 2012, announced his campaign for reelection, he retreated still further into accepting and maintaining the illegal apparatus constructed by the Bush administration, ordering that inmates at Guantanamo be tried by military commissions in Cuba, not by civilian courts in the United States, as he had previously said they should be.

This capitulation is only the latest in a series that have left liberals equal parts furious and rueful that they ever believed in Obama in the first place. I sympathize with their views, but I strongly disagree.

I think Obama’s presidency has been close to an unqualified success.

That view doesn’t make me popular among many of my liberal friends. (To be clear, these people aren’t any further left than me: they just have different views re this administration) And most of the conversations I’ve had about politics these past two years have been arguments about defending the Obama Administration against those who are disappointed, indignant, or enraged at how much he has surrendered—no public option, no cap-and-trade, no immigration reform, a stimulus that was too small, Wall Street reform that was too weak, thousands of troops still in Iraq, hesitance on gay rights and gun control, and implicit or explicit rhetorical acceptance of the conservative point of view on judicial nominations, national security, government spending and debt, and so on. Plus escalation in Afghanistan. And Guantanamo.

For many, Guantanamo, while not Obama’s biggest failure, is the archetype of them all: it is a journey from high ideals to capitulation, in which the uplifting orator Obama, who once spoke passionately and it seemed genuinely about our ideals, has backed down, given in, and embraced Bush policies with a whimper.

Photo: The White House

As a defender of this administration who is also a committed liberal and who cheered as loudly as anyone when then-Senator Obama promised to shutter Guantanamo on the campaign trail, I agree that this failure is typical of President Obama’s administration—but not in the way many liberals think.

In fact, insofar as it constitutes an exemplar of his presidency, it’s an example of with what commitment to principle he and his team have led, of how he has taken the blame for how appallingly, inconceivably bad the situation they inherited was, of how little help he’s gotten from his supposed allies, of how vicious his opponents have been, and of what a mistake it is that so many on the left have turned on him.

So I want to use this article, the first I’ve written for elephant journal, to explain why I think Obama’s most clear-cut failure is, paradoxically, part of why there’s more reason to believe in him today than ever before, and more cause to have hope for his leadership for tomorrow than there ever was in 2008—three ways Guantanamo is typical of how little credit Obama gets compared to how much he deserves:

Things were worse than even the fiercest critics of Bush thought, but Obama has nevertheless made tremendous progress.

Despite the unbelievable hatred for Bush and Cheney on the left, which I share(d), and the widespread understanding that the previous administration was a clusterfuck on a scale that defied credulity, it actually, impossibly, turned out that the situation they left for the next guy was far, far worse than anyone imagined.

No matter how bad we thought Guantanamo was, did it occur to anyone that the CIA wouldn’t even have bothered to write down who was in there and why, so the incoming administration’s lawyers essentially had to start Googling in order to assemble files on the prisoners before they could even talk about what to do with them? When, on only his second full day in office, Obama acted on his oft-repeated promise—now often cited by critics—to close Guantanamo, he ordered that the job be done within the year. To most, that seemed pretty reasonable, even cautious. But then, as the Washington Post reported a few days later:

Incoming legal and national security officials—barred until the inauguration from examining classified material on the detainees—discovered that there were no comprehensive case files on many of them. Instead, they found that information on individual prisoners is “scattered throughout the executive branch,” a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.

Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and…threats to recommend the release or transfer of a detainee were often required, [an official] said, to persuade the CIA to “cough up a sentence or two.” A second former Pentagon official…described “regular food fights” among different parts of the government over information-sharing on the detainees.

“No case files?” “Threats to release detainees were required?” “Regular food fights?” Seriously? The pledge to close Guantanamo had been a frequently made, core promise of every Democratic candidate in 2008, especially Obama, and was a part of the Democratic platform in the campaign that was so popular it gained bipartisan support—John McCain and even, eventually, Bush himself said Guantanamo should be closed. And it was a promise Obama acted on, issuing a clear executive order for the closing of the camp “as soon as practicable, and no later than one year from the date of this order.”

Photo: The White House

But for all the liberal anger at Bush, which would soon wash up against Obama after the optimism of those early days faded, few noted that Guantanamo was one of countless startling cases in which, repugnant as everyone thought the Bush regime was, astonishing as the failure it represented had become, when what Bush had wrought was brought fully into the light of day by his new, more transparent successor, the mess to be mopped up was much worse, and would take a lot more time, a lot more scrubbing, and a lot more risk of the new administration getting its hands dirty, than anyone knew or cared to admit. We wanted it cleaned, and quickly.

Perhaps unsurprisingly, after eight years of torture, war, and lawlessness, nobody wanted to hear that Obama’s job would take years, would require compromise, and would probably never be finished. But with Guantanamo as with many issues, liberal disappointment began with underestimation of the challenges Bush had left, turning a task as basic as assembling the cases of detainees into a months-long process that had to be completed before decisions could even begin to be made.

The next blow to the administration’s efforts came when they were unexpectedly royally screwed by cowardly congressional Democrats (not to put it too bluntly). To keep drawing parallels between the story of Guantanamo and the wider story of Obama’s struggles, what happened was fundamentally that Obama fell victim to precisely the brand of politics he refused to practice. That’s the second part of the pattern:

Congressional Democrats give in to the inane or insane demands of modern politics, Republicans dig in their heels, and Obama takes the blame.

In response to widespread Republican fear-mongering of exactly the kind Obama’s election was supposed to be a repudiation of, and which Democrats had promised to resist, Obama had requested $80 million to close Guantanamo. Not only did he not get the money, but Congress voted to specifically prohibit any federal funds from being used to transport detainees from Guantanamo to the United States.

In doing so, they not only surrendered to the insane rhetoric that surrounded the issue (“terrorists coming to a neighborhood near you,” the attack ads ran, as if they would be installed down the street instead of in Supermax prisons) but capitulated to the counter-productive idea that Khalid Sheikh Mohammed and his ilk are all-powerful supermen instead of criminals—and made it far, far more difficult to close Guantanamo.

All the administration’s efforts on civil liberties since then need to be understood in the context of this early humiliation, suffered when Obama was still near the height of his popularity; in his inaugural address, he had said, “We reject as false the choice between our security and our ideals.” While Republicans grumbled, Democrats applauded. But only a few weeks later, they delivered the young administration its first major legislative defeat by voting to make it illegal for the president to follow the law and the constitution as he saw it.

The administration lost the vote 90-6. Dick Durbin of Illinois (a close and early Obama ally), Tom Harkin of Iowa (a long-time liberal from a swing state), Patrick Leahy of Vermont (chairman of the Judiciary Committee), Carl Levin of Michigan (chairman of the Armed Services committee), and Jack Reed and Sheldon Whitehouse of Rhode Island were the only Democrats not to surrender. The cowardly abdicators of responsibility included virtually all members of the President’s own party in Congress, including liberals in safe seats who would later claim to be disappointed that the “national shame” of Guantanamo was still in place.

Over and over, Obama has taken the blame for the consequences of the cowardice of Democrats, extremism of Republicans, and hypocrisy of both, and a Congress which has been more mind-bogglingly dysfunctional, dishonest, and brain-damaged than even most cynics expected or thought possible; ironically, critics are especially harsh when Obama is blocked from fulfilling the core promises that matter most to him and his supporters, no matter how hard he works or adroitly he maneuvers. (See: health care.)

Photo: Brennan Linsley

But Obama and his administration pushed forward, compiling information, spending time, money, and political capital moving those detainees known to be innocent out of the notorious facility to whatever countries would take them. In a widely-praised speech at the National Archives, Obama laid out a thoughtful, comprehensive strategy, dividing detainees into five categories, discussing each in turn. (Cable news preferred Dick Cheney’s remarks to a right-wing think tank on the same day, including the accusation that Obama was “unravelling some of the very policies that have kept our people safe.”)

For the most difficult cases, however, there was no way out of Guantanamo for the administration or the rest of us. Robbed of the capacity to move any to the United States—and badly burned by a mishandled rollout of the Justice Department’s plan to try 9/11 mastermind Khalid Sheikh Mohammed and others in New York City (Attorney General Eric Holder failed to inform Michael Bloomberg and local authorities beforehand, leading to confusion and concern about the costs of security)—there was nothing they could do.

Photo: The White House.

Real and perceived failures surrounding Guantanamo led to the first high-profile departure of the whole Obama administration, that of his first White House Counsel Greg Craig. Craig, a consummate Washington insider, was at first seen as the perfect man for the job, competent, careful, and connected, but he soon found himself swallowed up by the swamp he was trying to crawl out of, one left by Republicans who shoved him back in as spotless liberals stood back and jeered at him and his boss for not keeping impeccably clean as they crawled toward dry land.

But they’re still trying. Even though there’s not exactly a clear constituency or powerful lobby or suitcase of votes behind the resolution of the vexed Guantanamo problem, even though it’s caused the administration nothing but trouble, they’re still trying. And that’s the third piece:

Obama still has enough faith in his team, in the Constitution, and in us, the American people, to forge ahead.

In the face of unbelievable opposition, without support from anyone, despite criticism that is as unhinged as it is pervasive, in the midst of incredible chaos, they are trying not only to survive but to emerge with what little justice they can still extract from this hideous circumstance.

And today, looking toward reelection—with the left calling him “no better than Bush,” the right savaging him as more interested in Miranda rights for terrorists than in American lives, and the war criminals of the Bush years, now gainfully employed by Fox News and led by Darth Cheney and his fearmongering spawn, gleefully declaring their illegal strategy vindicated by Obama’s failure thus far to extricate the nation fully from the thicket in which they left us (and silently cheerleading for an attack they can blame on Democrats, never mind the body count)—Obama, Holder, and the heroic, anonymous public attorneys serving under them are still trying to do the right thing by the Constitution, by our system of justice, and by the American people, even the ones who hate them. Yes we can, indeed.


Harris Mercer is a new resident of Boulder and a native of New York City. He served as National High School Director with Students for Barack Obama at Obama for America throughout the Democratic presidential primaries in 2007 and 2008. At Bennington College in Bennington, VT he got to study both his obsessions: politics and Shakespeare. This is his first article for elephant journal, where he’s now an intern, but he looks forward to writing more and is likely to focus on defenses of the Obama administration from the left. He can be reached at harrismercer [at] gmail [dot] com and wants you to go to http://whatthefuckhasobamadonesofar.com.

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